Nitya Khare, a 2nd -Year Student of LNCT University, has written this Article on “Article 22 of the Indian Constitution”.
Introduction
India is the largest democracy in the world and owing to its status it is important that its constitution uphold the basic essence of democracy as a whole. The constitution does so by protecting the most basic civic and human liberties of its citizens in the form of the fundamental rights as enshrined in Part III of the Indian Constitution. One such fundamental right which forms an integral part of the right to freedom is Article 22 of the Indian Constitution. It ensures all person protection against arrest and detention in certain cases. Therefore, this fundamental right is available to both citizens and non-citizens just the same against any arrest or detention made against them by a capricious or arbitrary exercise of power.
The importance of the article as an indispensable part of the fundamental rights can be seen by the presence of this right in the International Covenant on Civil and Political Rights in the form of Article 9(1) of the covenant and the Universal Declaration of Human Rights in the form of Article 9 of the declaration. Both of these highlight the rights and safeguards of an individual against any form of arbitrary arrest and detention made against him by any type of executive or non-judicial power. The international recognition of this right makes it an important and basic feature in the chapter of human liberties.
Article 22 of the Indian Constitution
Article 22 of the Indian Constitution was included as part of the original Constitution, which was adopted in 1949. The article is based on similar provisions in other constitutions. Such as the Fifth and Sixth Amendments in the United States Constitution and Article 5 of the European Convention on Human Rights.
It lays down the framework for the governance of the country and protects the rights and freedoms of citizens. This article is part of the fundamental rights chapter of the Constitution. It lays down the rights that are guaranteed to the citizens of India. The fundamental rights are considered to be the most essential rights of citizens and are protected by the Constitution.
Article 22 is a crucial provision that lays down the procedures that must be followed by the state when a person is arrested. It also mentions the rights of the arrested person, which are to be protected by the state.
The article lays down the rights of arrested persons. Also, the procedures to be followed by the authorities when someone is arrested. It includes the following provisions:
Rights of arrested persons under ordinary law
Article 22(1) and (2) guarantee four rights for a person who is arrested for any offense under ordinary law. These rights are available to both citizens and non-citizens except for the persons arrested and detained under the preventive detention laws who are covered by clauses 4 to 7 of the article.
The following are the basic rights guaranteed to the qualified persons under clauses (1) and (2)
Right to be informed of the grounds of arrest
Article 22(1) of Indian Constitution states that every arrested person who is detained in authoritative custody shall have the right to be informed of the grounds on which such an arrest is made against him. Every person who is arrested and detained in the custody of any authorized authority has the right to be informed of the reasons so as to facilitate him to make an application for bail or file a writ of habeas corpus.
This is important as it also allows the person arrested to prepare his defense with a view to enable him to represent himself lawfully. The clause is in the nature of a directive to the arresting authority to reveal the grounds of the arrest to the person.
The court in the case of Tarapada De v. State of West Bengal[1] held that the words “as soon as may be” used in the article means as nearly as is reasonable in the circumstances of a particular case. If the grounds of the arrest are delayed to be informed then it must be justified by reason.
Therefore, the arrested person must be informed of the grounds as a matter of right.
Right to be defended by a lawyer of his own choice
Article 22(1) gives an arrested person the right to consult or be defended by a legal practitioner or a lawyer of his own choice with the objective to represent himself before the court. Prior to Maneka Gandhi’s case, the view was that the court was not bound to provide the help of a lawyer unless a request was made. But after the ruling of the Supreme Court in Maneka Gandhi’s[2] case and a series of cases following that case, it is clear that the courts will be bound to provide the assistance of a lawyer arrested under ordinary law also.
In the case of Mohammed Amir Kasab alias Abu Mujahid v. State of Maharashtra[3] the arrested person was a Pakistani who was offered the services of a lawyer upon his arrest as per the article. But having refused the same and the services of any Indian lawyer he sought a lawyer from his home country. Thereafter he again made a request for a lawyer upon being denied help from his home country which he was provided immediately. Therefore, his constitutional right was upheld under Article 22(1).
Resolution of the bar council not to defend some persons in criminal cases-
In the case of A.S. Mohammed Rafi v. State of Tamil Nadu[4] the bar association of Coimbatore had passed a resolution that no member of the Coimbatore bar should defend the arrested policeman in a case. The Supreme Court in this case held that the resolutions of several bar associations throughout the country that they will not defend a particular person or persons in a particular criminal case are wholly illegal, against all traditions of the bar, and against professional ethics.
Every person, however, wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious, or repulsive he may be regarded by society has a right to be defended in a court of law. Correspondingly it is the duty of the lawyer to defend him.
Right to be produced before a magistrate
Article 22(2) strikes the right balance between the interest of justice and the arrested person by giving him the right of being presented as a matter of legal compulsion before the court of the nearest magistrate within twenty-four hours of such arrest.
The article also keeps in view the realistic aspects of things by excluding the time required for conveyance from the place of arrest to the magistrate to make it more effective and applicable in the social scene. Therefore, every arrested person has the fundamental right to be presented before the magistrate within 24 hours of his arrest.
No detention beyond 24 hours except by an order of a magistrate
Article 22(2) of Indian Constitution safeguards the arrested person from the viciousness of the police by giving him the right of not being allowed to be kept in their custody beyond the stated limit except with prior permission or under the authority of the magistrate. If the arrested person has to be kept in custody beyond the limit then he shall be kept in judicial custody and not police custody.
The expression “arrest and detention” in Article 22(2) does not apply to a person arrested under a warrant but to a person arrested by an executive or non-judicial order for an accusation of a crime, quasi-crime nature, or some act prejudiced to the security of the state. The judicial arrests are not included to fulfill the absence of judicial mind in case of executive arrests which is already present in these arrests.
In the case of State of Punjab v. Ajaib Singh and Another[5] it was held that the Abducted Person (Recovery and Restoration) Act 1949 under which an abducted person could be arrested and delivered to the officer-in-charge of the nearest camp as valid by the reason that the said arrest does not constitute the “arrest and detention” because the person was not accused of a criminal offense.
Article 22(3)
It says that “(3) Nothing in clauses (1) and (2) shall apply (A) to any person who for the time being is an enemy alien. (B) to any person who is arrested or detained under any law providing for preventive detention.”
This means no individual arrested can be kept in custody for more than a period determined by the magistrate.
Article 22 (4)
“(4) No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention.”
It defines that no law provides preventive detention for a period not more than three months. Unless an Advisory Board of a qualified judge of the High Court.
Article 22(5)
“(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.”
The detained individual should be aware of the grounds for his detention. Also, be given an opportunity of making a representation against his/her case.
Article 22(6)
“(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.”
Exceptions to these rules are enemies and Aliens.
Article 22(7)
“(7) Parliament may by law prescribe
(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause ( 4 );
(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause ( 4 ) Right against Exploitation.”
This clause has subclauses a, b, and c. Where Parliament has the sole power to increase or decrease the detained period above three months. Also, decide the procedure for arrest and detention given by the Advisory Board.
Objectives of Article 22 of the Indian Constitution
- To prevent arbitrary arrest and detention.
- To ensure that citizens are informed of the grounds for arrest,
- To protect the right to legal representation.
- To prevent prolonged detention without trial.
- To ensure fair and humane treatment in custody
- To provide a check on the power of the state
What is detention?
There are two types of detentions
Punitive
Punitive detention is a detention after a trial.
Preventive
Preventive detention is without trial. A person can be detained only on grounds of suspicion. Hence, the rights of a person arrested in this manner get governed by preventive detention laws.
Punitive Detention
Clause 1 of Article 22 of the Indian Constitution delineates two major provisions. Firstly, the fundamental right of every arrestee to know the grounds of their arrest or detention. Secondly, the fundamental right of every arrestee to have a legal representation of choice. It includes not only legal consultation but also legal defense.
Joginder Kumar v. The State of Uttar Pradesh[6]
In this case, Chief Justice M. Venkatachalliah expounded on Clause 1 of Article 22, wherein he held that even if the arrest under the power and authority of a law enforcement agency is lawful, it should be pursued if and only if the preliminary investigation of the alleged complaint reasonably satisfies the law enforcement agency about the genuineness of the complaint, also, the law enforcement agency must justify the grounds of the arrest to the arrestee.
Shri D. K. Basu & Anr. v. The State of Uttar Pradesh & Anr[7]
This is the leading case that bolsters Clause 1of Article 22, wherein the two-judge divisional bench (Justice K. Singh and Justice A. S. Anand) clutched two major guidelines:
a) Any person who has an active interest in the welfare of the arrestee has the right to be informed about the arrest and the subsequent place of custodial detention.
b) The arrestee must sign an ‘Arrest Memo’ prepared by the on-scene police officer that mentions the reason, date, and time of the arrest.
It is worth noting Section 50, Clause 1 of the Code of Criminal Procedure, 1973, upholds the aforementioned provision. Wherein the arrestee is entitled to know the particulars of the crime for which the person is being arrested.
The 10th point given by the divisional bench allows the arrestee to consult a lawyer of their choice during the interrogation. This is enshrined within Clause 1 as the fundamental right of an arrestee to consult a legal practitioner.
Hussainara Khatoon & Ors. v. The State of Bihar & Anr.[8]
In this case, Justice P. N. Bhagwati highlighted a situation where an under-trial prisoner is placed behind bars for years at an end. Wherein the detention time extends beyond the maximum number of years the said individual would have been awarded if found guilty for the offense by the court of law due to the financial constraints of the individual.
The court observed that it is the failure of the Criminal Justice System where the poverty of the individual keeps them from not only producing the designated bail amount but also acquiring a lawyer to represent them in a court of law. In light of the non-speedy disposal of cases. The Supreme Court called the aforementioned plight of the financially weak under-trial prisoners a violation of their Fundamental Right to Life and Personal Liberty under Article 21 of the Indian Constitution, wherein the prisoners are unnecessarily detained for long durations.
This case highlights the constitutional right of getting a speedy trial. It expounds on the fundamentalism in providing free legal aid to the economically weak to truly champion Article 22(1). Wherein legal representation must be made fundamentally available to all citizens of India.
Maneka Gandhi v. Union of India[9]
It is worth mentioning that in this case, a seven-judge constitutional bench opined that the procedure established by law under which the Fundamental Right of Life and Personal Liberty is being withheld by the state must be reasonable, fair, and just. In light of the aforementioned violation, the Supreme Court of India held that spending longer than the required time in prison while awaiting a trial without proper legal representation is not a reasonable procedure. Additionally, the court of law directed the state to provide free legal aid at its own cost to the economically weak and deprived sections of society.
It is the absolute obligation of the Magistrate to provide a lawyer at the expense of the state to an unrepresented individual before the commencement of the trial. Moreover, it is the constitutional duty of the Magistrate and the state to provide a lawyer as soon as the arrestee is arrested even if the arrestee does not ask for legal representation in virtue of either refusal or silence.[10]
Although Clause 1 of Article 22 of the Indian Constitution provides for the Fundamental Right of Legal Consultation and Defense. The lawyer cannot be present at every stage of the custodial interrogation while accosting the law enforcement officers.[11] A lawyer’s duties are limited to representing the arrestee in judicial proceedings (defense) and providing legal counsel in legal matters. For eg: bail applications, legal consequences of certain confessions, etc. It does not include the duty to interfere in the interrogative questioning of the arrestee by law enforcement agencies.[12]
Moreover, Article 22(2) elucidates that an arrestee must be produced before the Magistrate within twenty-four hours of the arrest. The period of custodial detention cannot extend beyond twenty-four hours without presenting the arrestee before the nearest district Magistrate.
Provision of Cr.P.C.
One can postulate that the Code of Criminal Procedure, 1973 (CrPC, 1973) and the Indian Penal Code, 1860 (IPC, 1860) explicate the constitutional provisions to punish the misuse of power and authority to violate the rights and freedoms of citizens of India that have been conferred by the Constitution of India. Although Section 57 of the CrPC, 1973, strengthens the constitutional provision of not extending custodial detention beyond twenty-four hours without a special order of the magistrate. The provision for extending the twenty-four period of punitive detention is not mentioned in the constitution.
Section 167(2)(b) of the CrPC, 1973, allows the district Magistrate who has jurisdiction of the case to extend the period of custodial detention to fifteen days if and only if two pivotal conditions are met. (A) The arrestee is produced before the jurisdictional district Magistrate whilst in punitive detention. (B) If the investigation by the law enforcement agency is not complete within the first twenty-four hours of the arrest (Clause 1) and not only the law enforcement agency (the police) but also the district Magistrate have well-founded, reasonable grounds to keep the arrestee in custodial detention (Clause 2). The former condition cements the fundamental right of an arrestee or a detainee to be produced before a district Magistrate. Additionally, the latter condition bolsters Clause 2 of Article 22, wherein the district Magistrate has the sole authority to extend the punitive detention of an individual.
The State of Punjab v. Ajaib Singh & Anr.[13]
In this landmark judgment of a five-judge constitutional bench (Chief Justice M. P. Sastri, Justice S. R. Das, Justice B. K. Mukherjea, Justice V. Bose, and Justice N. H. Bhagwati). The court held that the action of physically recovering an individual without any actual accusation of commission of a punitive offense of criminal or quasi-criminal nature and handing the same individual to the custody of the nearest police station does not come under the ambit of ‘arrest’ within Clause 1 and 2 of Article 22 of Indian Constitution.
A. K. Roy v. Union of India & Anr.[14]
In this case, Chief Justice Y. V. Chandrachud dismantled Clause 2 of Article 22 of Indian Constitution, where he posited that an arrestee or a detainee under preventive custodial detention is denied the Fundamental Right of being defended by a legal practitioner of choice. Clause 3, Sub-Clause B revokes the Fundamental Right of Legal Representation under Clause 1.
An Alien Enemy is any individual that is either a subject of a foreign state that is at war with India or an Indian citizen that either voluntarily resides within or trades with the aforementioned state. Sub-Clause A of Clause 3 bars an Alien Enemy from the provisions under Clauses 1 and 2 of Article 22.
Preventive Detention Laws
A person can be put in jail/custody for two reasons. One is that he has committed a crime. Another is that he has the potential to commit a crime in the future. The custody arising out of the latter is preventive detention. As in this, a person is deemed likely to commit a crime. Thus Preventive Detention is done before the crime has been committed.
Preventive detention is also known as the ‘necessary evil’ of the Constitution as it can be steered in various directions. It can be put to use in various scenarios, not all being just and reasonable. It is the most contentious part of fundamental rights. The provision only mentions the rights people could exercise when they are detained. But it speaks nothing about any specific grounds or necessary provisions of detention. It thus gives enormous power to the authorities to twist the tool of preventive detention however and whenever they please. This has proved to be a way in which the freedom of the masses has been immensely curbed and continues to be so.
The necessity of such a provision
The aim of the constitution framers to bring such provision into existence was to prevent people from disrupting the peace and stability of the society. People were detained to prevent them from undermining the sanctity of the constitution, endangering the security of the state, disturbing relations of India with foreign powers, or hindering the maintenance of public order.
India follows preventive detention even in times of peace when there is no threat posed to its national security. So it is one of the main reasons for imposing and implementing provisions of preventive detention. While no other nation has this proposition during peacetime.
The Preventive Detention Acts
There have been a few acts in history that have been framed by law in order to fill in the gaps and provide provisions for detention.
Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)
This law was an anti-terrorism law that gave wide power to the authorities for dealing with national terrorism and socially disruptive activities. This Act provided that a person can be detained for up to 1 year without formal charges or trial. A detainee can be in custody for up to 60 days without being produced in front of a magistrate. Also, such a person may be produced by the executive magistrate who is not answerable to the high court. This Act allowed the authorities to withhold the identities of witnesses and secret trials. The police were given enhanced powers for the detention of suspects. The Act shifted the burden of proof on the accused. It led to the abuse of this Act and adverse effect on the democracy of the country. This Act is now repealed.
National Security Act, 1980[15]
The purpose of this Act was to provide for preventive detention laws and matters connected therewith. The authorities, through this Act, obtain the power to detain any person who poses a threat to the security of the nation in any prejudicial manner. They can also detain any foreigner and regulate their presence in the country. Under this Act, an individual can be detained without a charge for up to 12 months if the authorities are satisfied that the person is a threat to national security. The detainee can neither impose compulsion for knowing the grounds of detention nor can get a lawyer during the trial. The NSA has repeatedly come under criticism for the way it is used by the police. The Act differs from normal detention as it abrogates all rights available to the detainee in normal circumstances.
Prevention of Terrorism Act (POTA), 2002
This Act aimed at strengthening anti-terrorism laws in India. This Act replaced TADA. It defined what activities could constitute a terrorist act and who a terrorist was. Also to ensure no violation of human rights and misuse of power, certain safeguards were installed within the Act. The provisions were all similar to the ones provided in TADA. Right after the enactment of this Act, it was alleged that this law was grossly abused. Hence government repealed it after two short years.
Constitutional Safeguards against Preventive Detention Laws
Article 22 further deals with certain rights which are provided in case of preventive detention.
(a) Review by Advisory Board:
Clause 4 of the article states that no law framed for preventive detention gives authority to detain any person for more than 3 months. Unless; an advisory board reports a sufficient cause for such detention. The people on the advisory board should be equally qualified as that of a judge of the high court. The report needs to be submitted before the expiration of said 3 months.
(b) Communication of grounds of detention to detainee:
Clause 5 of the article states that any authority while detaining any person under the law providing for preventive detention shall communicate the grounds of detention to the person as soon as possible. The ground of detention should have a rational connection with the object which the detainee is prevented from attaining. The communication should provide all the material facts related to the ground. It should not be a mere statement of facts.
(c) No obligation of authority:
The detaining authority is under no obligation to provide the grounds of detention to the detainee prior to his arrest. But is advised to do so at the earliest thereby providing an opportunity for representation to the detainee as well.
A person already in custody can be detained when there are reasonable and sufficient causes to do so. The focal problem is that in cases of preventive detention, there is no way to check whether the cause of detention is just and reasonable until it is presented to the advisory board which is applicable after the stretch of 3 months.
(d) Detinue’s Right of Representation:
Clause 5 of the article also states that the grounds of the detention should be communicated as soon as possible in order to enable the right of representation to the person. The authority providing the detention order shall afford to the person the earliest opportunity of making a representation against the order.
Conservation of Foreign Exchange, Prevention of Smuggling Activities Act (COFEPOSA), 1974, and Article 22(5)
This Act was brought into force in 1974. It gave wide powers to the executive to detain individuals on the apprehension of their involvement in smuggling activities. Section 3 of this Act is shared with clause 5 of Article 22 of Indian Constitution. It states that the ground of detention should be communicated to the detainee within a minimum of five or a maximum of fifteen days. In no case should it be delayed beyond fifteen days. It must be completely furnished to the detainee, including all the facts. It should not be only a bare recital of the grounds. Any lapse within this provision would render the detention order void. This Act still stands valid.
No time limit prescribed for disposal of representation:
It does not provide any information about the method of dealing or disposing of the representation made by the detainee. It just extends to providing the right of representation. There is no further description or time limit assigned for the end result of the representation made. Which can be inferred as a means to keep lingering the issue at hand and aid in the wrongful detention of the person.
Exception under Article 22(6) of Indian Constitution
Clause 6 of the article is similar in nature to clause 3 as it stands as an exception to clause 5. It states that the detaining authority is not mandatorily required to disclose any such facts which it considers to be against the public interest to disclose. This clause does not mention any other specifications or details within the topic. Hence it is regarded as the utmost arbitrary and regressive. It has no solid basis or reasoning to resonate with the ‘against the public interest’ phrase. It can be arbitrary to any extent.
Subjective satisfaction of the detaining authority
Clause 7 of the article is the most regressive of all clauses. It authorizes the parliament to describe the circumstances and categories of cases where the detention of a person may be extended beyond three months without the opinion of the advisory board. It can also regulate the maximum period for which anyone may be detained under laws providing for preventive detention. The parliament also exercises hold on the methodology applied by the advisory board in the inquiry of detention cases. This clause provides for detention in cases of subjective satisfaction of the authority, where the element of ‘subjective satisfaction’ can be unjust and biased in any and every possible situation thus making it a piece of equipment to mask the legally and morally wrong detentions.
Hence, this clause provides complete subjectivity and authority to the government. Which is the cause of arbitrary and unjust cases of wrongful detention. The authorities are in a position enough to tweak the facts and circumstances of the case to project it fair. There is no antidote for the protection of such misery. This clause is the focal reason for criticism and misuse of this provision.
Conclusion
Article 22 of the Indian Constitution is a vital provision that ensures the protection of arrested persons in India. It lays down the rights and procedures that must be followed by the state in cases of arrest and detention. However, there are still instances where the rights of arrested persons are violated in practice. To address these issues, there need to be greater awareness and accountability mechanisms in place to ensure compliance with the article.
Also Read: UAPA – Why and How it is a stringent law. Click Here!
[1] AIR 1951 SC 174
[2] Maneka Gandhi v. Union of India, AIR 1978 SC 597
[3] AIR 2012 SC 3565
[4] AIR 2011 SC 308
[5] 1953 AIR 10, 1953 SCR 254
[6] (1994) 4 SCC 260
[7] (1997) 1 SCC 416
[8] (1979) 3 SCR 169
[9] (1978) 2 SCR 621
[10] The State of Madhya Pradesh v. Shobharam & Ors., AIR SC 1910 (1966)
[11] Nandini Satpathy v. Dani (P.L.) & Anr, 3 SCR 608 (1978)
[12] Poolpandi Etc. v. Superintendent, Central Excise & Ors., 3 SCR 247 (1992)
[13] Supra
[14] (1982) 2 SCR 272
[15] Nandlal Bajaj v. State of Punjab and Another, (1981), AIR 2041
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